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Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.
-- PROTECTION AND CARE
The requirement embodied in this Article is one of the most elementary humanitarian principles. Yet, in the case of maritime [p.85] warfare, the public conscience awoke to it somewhat tardily, and the sea was too often and for too long the scene of merciless and cruel deeds. Even in literary works it has been alleged that the history of the French, Netherlands, British and Spanish navies contained no instances of the charitable rescue of shipwrecked crews (1). That opinion seems somewhat exaggerated, however, and it is only just to point out that as long ago as the XVIIth century, noble and generous gestures were made in behalf of the wounded and shipwrecked (2). It was not until the beginning of the XIXth century (3), however, when Nelson ordered that as a general rule the crews of enemy ships set on fire were to be rescued, that there was a definite alleviation of the sometimes implacable nature of war at sea.
When in 1864 the Powers jointly proclaimed the principle of respect for the wounded soldier on the battlefield, the time also seemed ripe for fairly ready acceptance that that principle should be extended to war at sea.
The naval battle of Lissa, in 1866, when public opinion was shocked by the heavy losses, made it obvious that if the principle had already been thus extended, many sailors could have been saved. In the following year, at the first International Conference of the Red Cross (held at Paris in 1867), there was no opposition to the establishment, in the form of a recommendation, of a first draft extending the principle of 1864 to war at sea; that draft constituted "the first embryo of written law in behalf of the victims of maritime warfare" (4). As already mentioned in the Introduction, the 1868 Diplomatic Conference embodied the principle in the "Articles concerning the Navy" of the "Additional Convention of October 20, 1868" (5).
[p.86] That Convention was never ratified, however, and it was not until 1899, when the Third Hague Convention was concluded, that the principle of rescuing the shipwrecked, wounded and sick at sea was finally embodied in positive law: hospital ships "shall afford relief and assistance to the wounded, sick and shipwrecked of the belligerents independently of their nationality" (Article 4
); the wounded or sick "shall be protected and looked after" (Article 8
As has already been seen, this principle dominates the whole Convention. The 1949 Diplomatic Conference, acting in this respect more logically than the Hague Conferences of 1899 and 1907, therefore placed it at the beginning of the Convention, immediately following the eleven general Articles common to all four Conventions (6). From this principle flow all the other obligations laid on the Parties to a conflict, to which the succeeding Chapters refer.
PARAGRAPH 1. -- RESPECT AND PROTECTION
The paragraph opens with a definition of the persons who must be respected and protected when wounded, sick or shipwrecked, namely "members of the armed forces and other persons mentioned in the following Article".
The Hague Convention of 1899 mentioned only "sailors and soldiers who are taken on board". The 1907 Convention added to this definition "other persons officially attached to fleets or armies". In 1949 it was nevertheless considered necessary to specify who those "other persons" were, and the Diplomatic Conference listed them in Article 13, for reasons which will be given later (7). The present paragraph refers to that list.
The term "armed forces" naturally includes land, naval and air forces.
Does this mean that only wounded, sick and shipwrecked belonging to those categories must be respected and protected, and not civilians, for instance? Certainly not. In the first place, [p.87] it must be pointed out that the purpose of this provision, and indeed of the whole Convention, is to protect wounded, sick and shipwrecked persons who, if they were not in this helpless state, could rightfully be attacked. As its title indicates, the Convention relates to "members of armed forces at sea". Article 12 affords to combatants in special circumstances the general protection which the law of nations normally offers to every human being. The fact that those entitled to that special protection are mentioned here in no way detracts from the normal rights of all other persons. Apart from the respect and care due to every wounded or sick person, which today is accepted as a matter of course, it has become an undisputed moral obligation that the shipwrecked must be rescued in all circumstances. This principle was moreover recognized by the Brussels
Conventions of 1910 (8), which, inter alia, require the captain of any vessel to assist any shipwrecked person, even an enemy.
The various meetings of experts which took place before the 1949 Diplomatic Conference were all in agreement that it might be useful to make express reference to this general obligation in the Convention. A second paragraph was therefore inserted in the draft text, extending the benefit of the provisions of paragraph 1 to wounded, sick and shipwrecked "of all vessels which are victims of hazards of war". In the draft submitted to the Diplomatic Conference, however, the International Committee of the Red Cross considered it preferable to omit that provision from the Second Convention, with a view to its inclusion in the new Convention for the protection of civilians; that seemed a more logical place for it, and it could be put in a more general form which would not limit the notion of shipwreck solely to the consequences of the hazards of war. After considerable discussion, the Conference finally agreed with that view (9). For reasons which were not explained, however, the Conference did not act on the request by the representative of the International Committee of the Red Cross [p.88] that the corresponding provision in the Fourth Convention should therefore be expanded, and Article 16, paragraph 2
, of that Convention as finally adopted is exactly the same as the draft originally submitted (10).
Another reason for the absence in the present provision of any express reference to civilians is the fact that the persons listed here, and they alone, will have prisoner-of-war status as soon as they are in the hands of the enemy.
On the other hand, the Second Convention rightly provides, in Article 35
below, that the fact that hospital ships are carrying wounded, sick or shipwrecked civilians must not be considered as depriving them of protection. Some authors have considered that this provision, coupled with the absence of any reference to civilians in the present Article, was a potential source of confusion, if not contradiction, in the Convention (11). We do not agree. The experience of the Second World War has shown that the civilians carried on board hospital ships are not always victims of maritime warfare, but may merely be wounded or sick persons who have to be evacuated. It was therefore essential to mention them in Article 35
since they are not "protected persons" in the sense of the Second Convention and their presence on board hospital ships might seem illegal. It was not necessary to refer to them in Article 12, since in any case civilians must be respected and protected, in virtue of the general principles of humanitarian treatment.
The words "who are at sea" were inserted in 1949 at the suggestion of the International Committee of the Red Cross with a view to defining the scope of the Second Convention, since wounded, sick or shipwrecked persons on land are protected by the corresponding provisions in the First Convention. The words should be taken in a broad sense as covering persons who, being in peril at sea, therefore have need of special assistance. The term "at sea" is of very general significance here; it comprises the high seas as [p.89] well as the territorial sea, and even, in certain cases, internal waters.
None of the Geneva Conventions defines what is meant by "wounded" and "sick". Any definition would necessarily be restrictive in character and would open the door to every kind of misinterpretation and abuse. The meaning of the words is a matter of common sense and good faith. They cover combatants who have fallen or have ceased to fight by reason of a wound or sickness. It is the fact of being wounded, of falling or laying down arms which constitutes the claim to protection.
On the other hand, the word "shipwrecked" calls for some explanation. Dictionaries are in agreement in defining a shipwrecked person as someone who is in peril as a result of the destruction or loss at sea of the vessel in which he was travelling. This definition nevertheless seems too restrictive. The occupants of a small craft which is carried out to sea by currents and can no longer return to the coast become shipwrecked, as do the passengers in a disabled ship, the survivors from an aircraft which has come down in the sea, etc. A person cast away on the coast or an island following an accident at sea would also be considered as shipwrecked. In all instances such as these, the Convention wishes the persons concerned to be rescued and protected; the provision emphasizes that the term "shipwreck" must be taken in its broadest sense and gives two examples, namely, forced landings at sea by or from aircraft. Another factor is involved here: the shipwrecked persons must be in need of assistance and care, and they must naturally refrain from any hostile
Article 11 of the Brussels Convention of 1910 defines a shipwrecked person as being a person found at sea in danger of perishing. That definition, however, does not introduce the concept of need, and does not cover a shipwrecked person who manages to reach the coast or an island, or one who is not really in danger of losing his life. For our part, we prefer the following definition: "a person in distress at sea or stranded on the coast".
The terms "respected" and "protected" are taken from the 1906 and 1929 Geneva Conventions respectively. The word "respect" ' (respecter) "respect" ' (respecter) ' means, according to the Dictionary of the French Academy, "to spare, not to attack" ' (épargner, ne point attaquer); ' [p.90] in a more positive sense, it comprises even such action as is necessary to ensure respect. "Protect" ' (protéger) ' means "to come to someone's defence, to lend help and support" ' (prendre la défense de quelqu'un, prêter secours et appui). ' In the case of the shipwrecked, it means that they must be rescued -- there is an implicit obligation to collect them (12). The First Geneva Convention has added two further duties to these rules: that of giving humane treatment and care. These duties are specified in paragraph 2 of the present Article.
The obligation set forth in paragraph 1 is a general one: it is valid "in all circumstances", and is addressed to all -- captains and crews of military or civilian vessels, the authorities on land, the civilian population, etc. The principle of the inviolability of a person placed ' hors de combat ' is universal, and it is the duty of everyone to know it and act in accordance with it.
Obviously, however, extreme cases may sometimes arise where the obligation cannot be respected in full. Thus, during a landing by armed forces, it will not always be possible while the attack is in progress to distinguish between an attacker trying to reach land and a soldier in danger of drowning. Similarly, in the case of persons specialized in under-water attacks, it may not always be evident when they are in peril and need assistance as shipwrecked. In such instances, persons in distress who renounce active combat can only expect the adversary to respect and rescue them if they make their situation clear, and of course provided the adversary sees their signals.
PARAGRAPH 2. -- TREATMENT AND CARE
This paragraph reproduces the text of Article 12, paragraph 2
, of the First Convention. It adds a positive obligation to the negative one contained in paragraph 1: the wounded, sick and shipwrecked must be given such medical care as their condition requires.
This fundamental principle has remained unchanged since 1864. The 1929 Diplomatic Conference added a rule which had [p.91] until then been implicit, namely that humane care and treatment must be given. The 1949 Diplomatic Conference made a point of developing and defining those two ideas. That is the purpose of the present paragraph and the two following ones.
Paragraph 2 begins by laying down that ' adverse ' distinctions are prohibited. By this novel provision the Conference very rightly sought to make clear that it did not intend to exclude distinctions made ' to the advantage ' of enemy wounded, sick or shipwrecked and in order to take account of their physical constitution or sex, the climate of their country of origin, etc.
The paragraph goes on to enumerate the adverse distinctions which are, in particular, forbidden -- such as those founded on sex, race, nationality, religion, political opinions or other similar criteria. Accordingly, there is nothing now which can justify a belligerent in making any adverse distinction between wounded, sick or shipwrecked who require attention, whether they be friend or foe. They are on a footing of complete equality in the matter of their claims to protection, respect and care.
Next comes a list of the breaches considered as being the gravest a belligerent can commit in regard to the wounded, sick or shipwrecked in his power (13).
It should be noted here that it was intended, by prohibiting the subjection of the wounded, sick or shipwrecked to biological experiments, to put an end to criminal Practices and to prevent wounded in captivity from being used as "guinea-pigs" for medical experiments. But the provision refers only to "biological experiments". It does not prevent the doctors in charge from trying new therapeutic methods which are justified on medical grounds (14).
[p.92] PARAGRAPH 3. -- ORDER OF TREATMENT
The prime purpose of Article 12, paragraph 3
, of the First Convention is to strengthen the principle of the equality of treatment of the wounded, sick or shipwrecked, which was embodied in the preceding paragraph. It indicates the only reasons which can justify priority in the order of treatment -- namely, reasons of medical urgency. It also indicates an exception to the above principle, but an exception which is perfectly justified. In a hospital ship, for instance, which is crowded by an influx of wounded, both friends and enemies, the doctors will attend first to those patients for whom delay might be fatal or at any rate prejudicial, proceeding afterwards to those whose condition is not such as to necessitate immediate attention.
PARAGRAPH 4. -- TREATMENT OF WOMEN
This provision, which is identical to Article 12, paragraph 4
, of the First Convention, is an example of a favourable distinction made compulsory. Its introduction by the Diplomatic Conference merely made good an existing omission. In 1929, it was already recognized that women taking part officially in military operations must be treated with the special consideration due to their sex; and a clause to that effect was introduced in the Convention relative to the Treatment of Prisoners of War, but not in the Geneva Convention properly so called. It was no doubt felt that this special consideration for wounded or sick women combatants was implicit. But in view of the continually increasing participation of women in military operations, and in view also of painful experiences during the Second World War, it seemed necessary to include a special injunction on the point.
The special consideration with which women must be treated is of course in addition to the safeguards embodied in the preceding paragraphs, to the benefits of which women are entitled equally with men. What special consideration? No doubt that accorded in every civilized country to beings who are weaker than oneself and whose honour and modesty call for respect. Apart from this, the principle of equality of treatment as between enemies and nationals is involved.
* (1) [(1) p.85] See CAUWES: op. cit., p. 6;
(2) [(2) p.85] See C. R. BOXER: ' The Journal of Maarten
Harpertszoon Tromp, Anno 1639, ' Cambridge University
Press, 1930, pp. 39, 63, 165-6, 168. See also J. C. M.
WARNSINCK: ' Admiraal de Ruyter, De Zeeslag op
Schooneveld, Juni 1673, ' The Hague 1930, passim;
(3) [(3) p.85] Mention should, however, be made of the cartel
of March 12, 1780, already referred to in the Introduction
to the present Commentary;
(4) [(4) p.85] CAUWES: op. cit., p. 33;
(5) [(5) p.85] See above, p. 5 ff.;
(6) [(1) p.86] It is to be found dominating the First
Convention in Article 12, the Third Convention in Article
13, and the Fourth Convention in Article 27;
(7) [(2) p.86] See below, p. 94 ff.;
(8) [(1) p.87] Article 11 of the Convention for the
unification of certain rules respecting assistance and
salvage at sea, Brussels, September 23, 1910, and Article
8 of the Convention for the unification of certain rules
with respect to collisions, Brussels, September 23, 1910;
(9) [(2) p.87] See ' Final Record of the Diplomatic Conference
of Geneva of 1949, ' Vol. II-A, pp. 52-54;
(10) [(1) p.88] The paragraph reads as follows: "As far as
military considerations allow, each Party to the conflict
shall facilitate the steps taken to search for the killed
and wounded, to assist the shipwrecked and other persons
exposed to grave danger, and to protect them against
pillage and illtreatment";
(11) [(2) p.88] See TUCKER: ' The Law of War and Neutrality at
Sea, ' Washington, 1957, p. 120, note 76;
(12) [(1) p.90] This obligation is explicit in Article 18; see
below, pp. 130-131;
(13) [(1) p.91] Such acts are considered as "grave breaches" in
the sense of Articles 50 and 51;
(14) [(2) p.91] The corresponding provision of the Third
Convention (Article 13) is more explicit and lays down
specifically that "no prisoner of war may be subjected
to... medical or scientific experiments of any kind which
are not justified by the medical, dental or hospital
treatment of the prisoner concerned and carried out in his
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